The 2015 General Assembly Session will be a short session of 45 days beginning on Wednesday, January 14, 2015, and adjourning (if on schedule) on February 28, 2015. Over the coming weeks we’ll blog about the civil liberties and civil rights issues at stake during the 2015 session.by Frank Knaack, Director of Public Policy and Communications
Virginia’s criminal justice system is broken. The failed “War on Drugs” and “tough on crime” laws have led to a 735% increase in Virginia’s prison population since 1970. This has resulted in school policies that feed the school-to-prison pipeline, punitive criminal laws that have no basis in evidence, and policing practices that disproportionately target communities of color and incentivize harsh police tactics. Mandatory minimum sentences and three strikes laws (even for non-violent offenses) have become the norm. The good news – our General Assembly created this trend and it can reverse it. We’ll be working to move Virginia from “tough on crime” to “smart on crime” by advancing evidence-based reforms to our juvenile and criminal justice systems designed to reduce incarceration levels, end the disproportionate impact of our criminal laws on African Americans, and save limited tax dollars.
Here are our criminal justice reform priorities during the 2015 session:
Intellectual Disability and the Death Penalty
Legislation will be introduced to bring Virginia’s intellectual disability threshold vis-à-vis eligibility for the death penalty in line with the U.S. Supreme Court’s decision on Hall v. Florida. Hall found that Florida’s use of a hard 70 IQ cutoff was unconstitutional. Virginia uses the same hard 70 IQ cutoff. Legislation also may be introduced that would enable a defendant to request a pre-trial evaluation to determine whether he or she is intellectually disabled, and thus ineligible for the death penalty. Under current law, intellectual disability is not determined until the sentencing phase, which means that the Commonwealth undertakes the time and expense of a capital trial for a defendant who may be ineligible for the death penalty. These bills represent recommendations made by the American Bar Association during its assessment of Virginia’s capital punishment system. While the ACLU of Virginia continues to advocate for death penalty repeal, we also support legislation designed to ensure better procedural safeguards for intellectually disabled defendants accused of a capital offense.
Method of Execution
The Department of Corrections has indicated it will introduce legislation, identical to legislation that failed to pass in 2014, that would allow the Commonwealth to default to the electric chair for executions if it does not have the necessary lethal injection drugs. Under Virginia law, people on death row can choose between lethal injection and the electric chair, and if they don’t, then the Commonwealth must default to lethal injection. The ACLU of Virginia opposes legislation that would enable the Commonwealth to keep the machinery of death going, especially when our death penalty process has flaws from the law enforcement identification process at the beginning to the post conviction process at the end.
Access to Counsel
We are working on legislation that would create a fairer assessment of an indigent defendant’s true ability to afford counsel. Under Virginia law, individuals are not eligible for appointed counsel unless their available funds are equal to or below 125 percent of the federal poverty guidelines. This means that an individual can make less than the minimum wage, qualify for food stamps, and still not qualify for appointed counsel. This legislation would create a new guideline for determining indigency that would take into account the cost of counsel as well as the individual financial situation of the defendant, including expenses such as student loans, child support, and room and board. The ACLU of Virginia is advocating for legislation that would better ensure that everyone has counsel in a criminal trial where loss of liberty is a possibility, even if they cannot afford it.
Civil Asset Forfeiture
Legislation has been introduced that would require a criminal conviction before an individual’s property could be forfeited to the Commonwealth. We are also working on legislation to restrict the ability of local and state law enforcement to benefit from the forfeiture of property through federal programs if the forfeiture is not tied to a criminal conviction. The ACLU of Virginia supports legislation that would require a criminal conviction before an individual’s property can be forfeited to the Commonwealth.
Safe Reporting of Overdose
Legislation will be introduced to provide individuals with limited immunity from arrest, charge, or prosecution for simple possession of a controlled substance or a synthetic cannabinoid or for the unlawful purchase, possession, or consumption of alcohol if the evidence for the charge was gained as a result of the individual seeking or obtaining emergency medical attention for himself or for another individual because of a drug or alcohol-related overdose. The ACLU of Virginia supports legislation that would reduce the number of individuals brought into our criminal justice system for drug possession and address important public health concerns outside of the criminal justice system.
Encourage Reporting of Crime
We are considering the reintroduction of legislation that would encourage victims and witnesses of crime to cooperate with law enforcement by establishing a statewide policy that law enforcement would not inquire routinely into the immigration status of a cooperating victim of or witness to crime. Identical legislation has passed the Senate unanimously three times in the past only to be killed in the House. The ACLU of Virginia supports legislation that would increase trust between immigrants and law enforcement and limit engagement of local and state law enforcement in the enforcement of immigration laws.
We are working to discourage the introduction of legislation that would create a criminal sexting offense. Under Virginia law, sexting is not a crime but some government officials have abused their authority by charging children with felony distribution of child pornography for engaging in sexting. The ACLU of Virginia opposes the creation of a criminal sexting offense because, while sexting may be a dumb, unhealthy, and risky behavior, we must not drag children into court for every poor decision they make. Instead, we should look to parents and educators to teach children about the need to respect their own bodies and the privacy of their peers as well as the need to use electronic media responsibly.
Sex Offender Registry – Juveniles
We expect legislation to be introduced that would remove judicial discretion regarding whether a juvenile must go on the registry. Under current law, courts determine when juvenile offenders over the age of 13 are required to register as a sex offender. The ACLU of Virginia supports judges who want to retain discretion and opposes legislation that labels juveniles as sex offenders for life, thereby limiting their educational, social, and career opportunities, and their ability to fully contribute to society.
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